ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Application No.S-437   of  2024

 

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

 

1.   For orders on office objection.

2.   For hearing of bail application.

 

25.09.2024.

Mr. Faheem Akhtar, advocate for the applicant.

Mr. AitbarAliBullo, DPG.

 

O R D E R

KHADIM HUSSAIN SOOMRO, J.-Applicant Dildar, son of Deedar Ali Chandio, is confined in jail in Crime No.58/2024, registered at Police Station Mirokhan, for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997.He applied for his release on post-arrest bail, which was declined by the learned 1st Additional Sessions Judge/Special Judge (C.N.S.), Shahdadkot, vide order dated 30.07.2024.

 

2.         Facts of the prosecution case, in brief, are that on 02.07.2024, at 0700 hours, a police posse of PS Mirokhan headed by A.S.I. Imdad Hussain Jagirani, during patrolling, apprehended applicant/accused Dildar Chandio from near Khosa Bridge situated on the road leading from Mirokhan to Village Arzi Bhutto and recovered Charas weighing 500 grams in the presence of mashirs PC Muheem and PC Amjad Ali. To such effect, F.I.R.was registered on behalf of the State.

 

3.         Learned counsel for the applicant submits that as per the prosecution case, the applicant was arrested near the main Khosa Bridge on a link road, but no independent person was picked or associated with witnessing the alleged recovery; that the offence carrying a maximum punishment of 05 years does not attract the prohibition contained in Section 51 of the C.N.S. Act, 1997; neither photographs nor video recording of the seizure and arrest were made; the case has been challenged and the applicant is not required to police for any further investigation.

 

4.         Learned D.P.G., appearing for the State, does not oppose the bail application, contending that the offence with which the accused is charged does not fall within the prohibitory clause of Section 497, Cr.P.C.

 

5.         Admittedly, the recovery shown is of only 500 grams of contraband Charas from the applicant/accused and such recovery being less than one kilogram attracts the provision of Section 9(b) of Control of Narcotic Substances, Act 1997 providing a maximum sentence of 5 years, which does not exceed the prohibitory clause of Section 497, Cr.P.C. Undeniably, the provisions of Section 103, Cr.P.C are not applicable in the cases involving recovery of narcotic substances on specific places, as described under Section 25 of the C.N.S. Act, 1997; nevertheless, the police could have recorded video and taken photographs of the recovery proceedings since, Article 164 of the Qanun-e-Shahadat Order, 1984 specifically permits use to modern devices or techniques.

 

6.         In the instant case, the Charas was allegedly recovered on 02.07.2024. Still, the same was sent to the chemical analyzer on 11.07.2024 with a delay of 09 days, and the Investigating Officer does not explain such delay. Rule 4 of Control of Narcotics Substance (Government Analysts) Rules, 2001, states that a sealed parcel is to be dispatched for analysis under the cover of a Test Memorandum specified in Form-A at the earliest but not later than 72 hours of the seizure. The violation of the rules makes the case of prosecution one of further enquiry.

 

7          In the case of  Zahid Sarfraz Gill V/S  The State (2024 S C M R 934), the apex court has observed that Section 25 of the C.N.S. Act 1997, exempts the application of Section 103 of the Code of Criminal Procedure, 1898, which mandates the presence of two or more respectable local inhabitants during a search. Nevertheless, it is unclear why the police and Anti-Narcotics Force (A.N.F.) members do not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques, and Article 165 of the same law supersedes all other laws in this regard. In narcotics cases, prosecution witnesses are typically personnel from the Anti-Narcotics Force (A.N.F.) or police officers, who are generally equipped with cell phones containing built-in cameras. Given that the witnesses in such cases are predominantly government officials and there are usually few witnesses, trials often experience unnecessary delays. Consequently, the accused frequently seek bail initially from the trial court; if denied, they escalate their request to the High Court, and if still unsuccessful, they approach the Supreme Court. The use of mobile phone cameras by the police and A.N.F. to document the search, seizure, and arrest could serve as substantial evidence. Such recordings or photographs would help substantiate the presence of the accused at the crime scene, demonstrate possession of the narcotic substances, and validate the procedures of search and seizure. Moreover, this practice could mitigate false allegations against A.N.F. or police officials of fabricating evidence for ulterior motives

 

8.         For the foregoing reasons, the instant bail application is allowed. The applicant is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand) and P.R bond in the like amount to the satisfaction of the learned trial Court.

           

 

                                                                                                                        Judge

 

 

 

 

 

 

 

Qazi Tahir PA/*